# Ramnath Singh v. Parshuram Singh & Ors

- **Citation:** (2024) 8 ILRA 931
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-14
- **Case number:** Second Appeal No. 507 of 2024
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramnath-singh-v-parshuram-singh-ors-52494
- **Pages:** 10

## Headnote

Civil Law - Code of Civil Procedure,1908 -
Amended provisions of Order 41 Rule 1 CPC no
longer requires the attachment of a copy of the
decree in first appeals - the Allahabad High
Court Rules, 1952 mandates the attachment of
the decree in second appeals - when a single
suit gives rise to multiple appeals, a single
second appeal is sufficient - If multiple suits or
counter-claims are involved, separate appeals
must be filed - objection overruled regarding
the filing of separate second appeals. (E-9)

List of Cases cited:

## Text

8 All. Ramnath Singh Vs. Parshuram Singh & Ors.
931

22. In regard to the discharge from
service, the submission advanced by
learned counsel for the respondent that on
medical grounds, the employee can be
discharged from service, I perused the
provision contained under Section 47 of the
Act of 1995 and the judgment relied upon
by learned counsel for the petitioner. This
argument also suffers from vices of nonconsideration of the provisions contained
under the aforesaid Act and the judgment
relied upon.

23. After consideration of totality of
facts and circumstances of the case, this
Court is of the opinion that the impugned
orders dated 08.01.2004 passed by opposite
party No.1 (Annexure No.19), order dated
05.07.2002 passed by opposite party No.2
(Annexure No.17) and the order dated
6.12.2001 passed by opposite party No.3
(Annexure No.15) are hereby quashed. The
writ petition succeeds and is allowed.

24. It is however provided that the
petitioner
shall
be
provided
all
consequential
benefits,
which
are
applicable to the post, which he was
holding prior to initiation of disciplinary
proceeding.

25. No order as to costs.
----------
(2024) 8 ILRA 931
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.08.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 507 of 2024

Ramnath Singh ...Appellant
Versus
Parshuram Singh & Ors. ...Respondents
Counsel for the Appellant:
Sri Pradeep Kumar Rai, Sri Praiyot Rai

Counsel for the Respondents:
Sri Harish Kumar Yadav

Civil Law - Code of Civil Procedure,1908 -
Amended provisions of Order 41 Rule 1 CPC no
longer requires the attachment of a copy of the
decree in first appeals - the Allahabad High
Court Rules, 1952 mandates the attachment of
the decree in second appeals - when a single
suit gives rise to multiple appeals, a single
second appeal is sufficient - If multiple suits or
counter-claims are involved, separate appeals
must be filed - objection overruled regarding
the filing of separate second appeals. (E-9)

List of Cases cited:

1. Bhagwan Sahai Vs Daryao Kunwar & anr. AIR
1963 Allahabad 2010

2. Jai Narain Har Narain & anr. Vs L. Bulaqi Das
s/o L. Munna Lal AIR 1969 Allahabad 504

3. Khaleel Vs Aranjikkal Jamal Muhammed O.P.
(C) Nos. 28 of 2016 & 32 of 2016, decided on
30.11.2017

4. M/S Ramnath Exports Pvt. Ltd. Vs Vinita
Mehta & anr. (2022) 7 SCC 678

5. Sri Gangai Vinayagar Temple & anr. Vs
Meenakshi Ammal & ors. (2015) 3 SCC 624

6. Narhari Vs Shankar AIR 1953 SC 419

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. The instant second appeal has been
filed against the judgment and decree drawn
by First Appellate Court in Civil Appeal
No.26 of 2010 and Civil Appeal No.22 of
2010, and, additionally, part of the judgment
passed by the trial court in Original Suit
No.289 of 1984 has also been assailed.

2. The Stamp Reporting Section
has
endorsed
a
report
regarding
932 INDIAN LAW REPORTS ALLAHABAD SERIES
requirement of filing separate second
appeals arising out of each civil appeal.

3. Learned counsel for both parties
have been heard at length against and in
support of the said report and also on the
point as to whether it is at all necessary to
attach a copy of the decree of the first
appellate court along with memo of second
appeal, inasmuch as it is contended by Sri
Prajyot Rai, learned counsel for the
appellant, that it is not the requirement of
law as per certain amended provisions of
the Code of Civil Procedure, 1908. The
Court, therefore, proceeds to deal with the
said objection and contention.

4. The proceedings giving rise to
instant appeal emanate from an Original
Suit No.289 of 1984 instituted by the
plaintiff-appellant against the defendantrespondents claiming decree of permanent
prohibitory injunction. The suit was partly
decreed in favour of the plaintiff-appellant.
Aggrieved by that part whereby the
plaintiff's claim was not accepted, he filed
Civil Appeal No.26 of 2010, whereas
against partial decree against them, the
defendants filed Civil Appeal No.22 of
2010. Both the said civil appeals were
consolidated and have been decided by a
common
judgment
dated
18.03.2024
dismissing the suit of the plaintiff-appellant
in toto. By the same judgment, a third Civil
Appeal No.23 of 2010 filed by the
respondents of this appeal and arising out
of a different suit, i.e. Original Suit No.477
of 1984, was also dismissed, however, the
present appellant has no concern with Civil
Appeal No.23 of 2010 and has not
challenged that decree. Whereas, Civil
Appeal No.26 of 2010 was dismissed, the
Civil Appeal No.22 of 2010 was allowed
and the present appellant is aggrieved as
such.
5. It is contended on behalf of
appellant that in the aforesaid background
of proceedings, it is neither necessary to
file another appeal nor to attach copy of
any separate decree. It is further contended
that even requirement to attach decree of
the first appellate court is not necessary. In
support of his submission, learned counsel
has placed reliance upon Full Bench
judgment of this Court in Bhagwan Sahai
Vs. Daryao Kunwar and another: AIR
1963 Allahabad 2010 in which, a situation
with regard to different decrees drawn by
civil appellate court arising out of single
suit and two suits, was dealt with after
placing reliance upon the judgment of the
Supreme Court in Narhari Vs. Shankar,
AIR 1953 SC 419. He also placed reliance
upon Five Judges' Full Bench decision of
this Court in Jai Narain Har Narain and
another Vs. L. Bulaqi Das s/o L. Munna
Lal: AIR 1969 (Ald) 504.

6. It is vehemently argued with the
aid of written synopsis that till 1859, in
India, there was no uniform codified law
for the procedures to be followed in Civil
Courts. For the first time in 1859, an
organized form of Civil Procedure Code
was introduced by passing the Civil
Procedure Code (Act VII of 1859). The
Code of 1859 was amended from time to
time and was replaced by the Civil
Procedure Code, 1877. This Code of 1877
was amended in 1878 and 1879 and the
third Civil Procedure Code was enacted in
1882, which replaced the previous one. The
Code of 1882 was also amended several
times and, ultimately, the present Code of
Civil Procedure, 1908 came in existence on
January 1, 1909. The C.P.C was again
extensively amended in the year 1976 by
the Code of Civil Procedure (Amendment)
Act, 1976 (104 of 1976) which came into
force on February 1, 1977 but the
8 All. Ramnath Singh Vs. Parshuram Singh & Ors.
933
amendments made were not sufficient and,
therefore, with a view to adjudicate upon
civil cases in an expeditious manner,
Justice Malimath Committee was appointed
and, in pursuance to the recommendations
of the Committee, C.P.C was again
amended in 1999 and 2002.

7. It is further contended that the
object of the Code is to consolidate and
amend the laws relating to the procedure of
Court of Civil jurisdiction. It is a
consolidated Code which contains all the
laws relating to the procedure to be adopted
by Courts of Civil jurisdiction. It is
designed to facilitate justice and is not a
penal
enactment
that
prescribes
punishments and penalties. The provisions
of C.P.C. should be construed liberally and
technical objections should not be allowed
to defeat justice. A procedural law is
always
an
aid
of
justice,
not
in
contradiction or to defeat the very object
which is sought to be achieved and the
procedural law always remains subservient
to the substantive law.

8. Further contention is that by
Code of Civil Procedure (Amendment)
Act, 1976 (104 of 1976), a proviso was
added under Order 41 Rule 1; sub-rule
(3) was also added. Further submission is
that Order 41 Rule 1 CPC was further
amended in the year 2002 by Section
31(i) of Act No. 46 of 1999 which came
in effect from 01.07.2002. The word
'judgement' has been incorporated by
means of the amendment for "decree
appealed from and (unless the Appellate
Court
dispenses
therewith)
of
the
judgement on which it is founded".

9. Learned counsel for the
appellant also refers to Section 32 of the
Amendment Act No. 46 of 1999, which
came with effect from 01.7.2002 and which
reads as follows:

"Any amendment made, or
any provision inserted in the
principal Act by a State Legislature
or
High
Court
before
the
commencement of this Act shall,
except insofar as such amendment
or provisions is consistent with the
provisions of the principal Act as
amended
by
this
Act,
stand
repealed."
It is, therefore, submitted
that since Order 41, Rule 1 CPC
stood amended, there may be one
appeal against separate judgments
and decrees if two or more suits
have been tried together and a
common
judgment
has
been
delivered. The memo shall be
accompanied by the copy of the
judgment only though, earlier, it
was necessary to file the copy of
the decree also.

10. It is vehemently argued that in
view of the Amendment Act No. 46 of
1999, the second appeal is to be preferred
against a judgment and the High Court
Rules are in conflict with the Code and are
merely for supplementing the Code/ Act
but under no stretch of imagination, the
provisions as contemplated under the
Allahabad High Court Rules, can override
the Code of Civil Procedure, 1908 as the
same are in the teeth of Amendment Act
No. 46 of 1999. It is further argued that if
any State enactment/rules are in conflict
with the Amended central Act, the
provisions as contained in the central
enactment will prevail if there is any
inconsistency.
Hence,
the
provisions
contained in the Allahabad High Court
Rules,1952 ceased to exist after 01.7.2002
934 INDIAN LAW REPORTS ALLAHABAD SERIES
by virtue of Section 32 of the Amendment
Act No. 46 of 1999 which shall supersede
the provisions as contemplated under
Chapter V Rule 2 sub-rule (ii) in the
Allahabad High Court, 1952 as the same
are inconsistent with the central enactment.
In support of his contention, learned
counsel for the appellant has placed
reliance upon a judgment of Kerala High
Court in Khaleel Vs. Aranjikkal Jamal
Muhammed (in O.P. (C) Nos.28 of 2016
& 32 of 2016, decided on 30.11.2017) and
he submits that in case certain provisions
made by State amendment are inconsistent
with the amended Central Law, the State
amendment shall cease to exist and it is the
Central law that shall prevail.

11. Per contra, learned counsel for
the respondents has placed reliance upon
paragraphs no.6 and 7 of the judgment of
Supreme Court in M/S Ramnath Exports
Pvt. Ltd. Vs. Vinita Mehta and another:
(2022) 7 SCC 678, which in fact note down
contentions raised before Supreme Court,
as under:-

"6. Being aggrieved, the
appellant preferred instant appeal
and learned counsel present has
contested the same on following
grounds -
a)
The
appellant
had
assailed the findings recorded by
Trial Court by mentioning both the
suit numbers alongwith payment of
requisite court fee for the purpose
of valuation on the basis of
consolidated value of suits;
b) The first appeal was
admitted by High Court vide order
dated 18.07.2008, but the same was
dismissed after a decade without
entering into the merits of the case;
c) While admitting the
appeal, notice was issued on
CLMA, i.e., application to seek
permission to file single appeal
impugning the common judgment
and two decrees, but without
deciding the said application, the
preliminary objections raised by the
respondents has been maintained
causing serious prejudice to it;
d) The essence of rule of
res-judicata
is
that
the
two
proceedings
should
be
so
independent of each other that the
trial of one cannot be confused with
trial of other suit, but where two
suits having common issue were
tried together and disposed-off vide
single judgment, can they be said to
be two distinct and independent
trials;
e) In effect, only one
judgment was passed in the trial
and suits were not clubbed but were
consolidated for all purposes;
f) In support of the said
contentions learned counsel would
rely upon
i. State of Andra Pradesh &
Ors. Vs. B. Ranga Reddy (thru
LR's) & Ors., (2020) 15 SCC 681;
ii. Sri Gangai Vinayagar
Temple & Anr. Vs. Meenakshi
Ammal & Ors., (2015) 3 SCC 624;
7. Per contra, the counsel
for the respondents has argued in
support of the findings recorded in
the impugned judgment and made
the following submissions -
a.
The
appellant
unilaterally preferred single appeal
and paid the Court fee on the basis
of consolidated value of suits,
whereas, separate Court fee was to
8 All. Ramnath Singh Vs. Parshuram Singh & Ors.
935
be calculated on each decree and
affixed accordingly;
b. Appeal against decree
in Civil Suit No.411 of 1989 can
be filed before District Judge,
having a limitation of 30 days as
per Section 8 of Suits Valuation
Act, 1887, whereas, looking to
the
valuation,
appeal
against
decree in Civil Suit No.419 of
1993 lies before High Court
having a limitation of 90 days. No
such appeal against decree in
Civil Suit No.411 of 1989 before
District judge was preferred by
appellant;
c.
The
judgment
and
decree
passed
in
Civil
Suit
No.411 of 1989 has attained
finality inter-se parties since it
was not challenged within the
prescribed period of limitation;
d. Consolidation of suits
was done only for evidence and it
does not mean that one appeal can
be preferred since suits still retain
their
separate
identity.
Even
assuming that the consolidation
was for all purposes, yet the
procedure for preferring an appeal
cannot be waived or by-passed;
e. Since the day of notice in
first appeal, objection has been
raised for filing only one appeal
and still the said defect was not
rectified by the appellant;
f. Learned counsel placed
reliance on following judgments to
substantiate the submissions
i. Sri Gangai Vinayagar
Temple & Anr. Vs. Meenakshi
Ammal & Ors., (2015) 3 SCC 624;
ii. V. Natarajan Vs. SKS
Ispat & Power Ltd. & Ors., Civil
Appeal No.3327 of 2020)
iii. B. Santoshamma & Anr.
Vs. D. Sarla & Anr., 2020 SCC
OnLine SC 756;"

12. Further reliance has been
placed upon paragraphs no.21 and 22 of the
judgment
in
Sri
Gangai Vinayagar
Temple and another Vs. Meenakshi
Ammal and others: (2015) 3 SCC 624,
which read as under:-

"21. On the other hand, the
verdict of Full Bench of the
Allahabad High Court in Zaharia
vs. Debia ILR (1911) 33 All 51 and
decisions of the Calcutta High
Court in Isup Ali vs. Gour Chandra
Deb 37 Cal LJ 184: AIR 1923 Cal
496 and of the Patna High Court in
Mrs. Getrude Oastes vs. Mrs
Millicent D'Silva ILR 12 Pat 139 :
AIR 1933 Pat 78 are of the contrary
persuasion. These decisions largely
proceeded on the predication that
the phraseology "suit" is not
limited to the Court of First
Instance
or
Trial
Court
but
encompasses within its domain
proceedings before the Appellate
Courts; that non-applicability of res
judicata may lead to inconsistent
decrees and conflicting decrees, not
only due to multiplicity of decrees
but also due to multiplicity of the
parties,
and
thereby
creating
confusion as to which decree has to
be given effect to in execution; that
a decree is valid unless it is a
nullity and the same cannot be
overruled or interfered with in
appellate
proceedings
initiated
against another decree; that the
issue of res judicata has to be
decided with reference to the
decrees,
which
are
appealable
936 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 96 of the CPC and
not with reference to the judgment
(which
has
been
defined
differently), but with respect to
decrees in the CPC; that nonconfirmation
of
a
decree
in
appellate
proceedings
has
no
consequence as far as it reaching
finality upon elapsing of the
limitation period is concerned in
view of the Explanation II of
Section 11, that provides that the
competence of a Court shall be
determined irrespective of any
provisions as to right of appeal
from the decision of such Court;
and that Section 11 of the CPC is
not exhaustive of the doctrine of res
judicata, which springs up from the
general principles of law and public
policy.
22.
Procedural
norms,
technicalities and processal law
evolve after years of empirical
experience, and to ignore them or
give them short shrift inevitably
defeats justice. Where a common
judgment has been delivered in
cases in which consolidation orders
have specifically been passed, we
think it irresistible that the filing of
a single appeal leads to the entire
dispute becoming sub judice once
again. Consolidation orders are
passed by virtue of the bestowal of
inherent powers on the Courts by
Section 151 of the CPC, as clarified
by this Court in Chitivalasa Jute
Mills vs. Jaypee Rewa Cement
(2004) 3 SCC 85. In the instance of
suits in which common Issues have
been framed and a common Trial
has been conducted, the losing
party must file appeals in respect of
all adverse decrees founded even
on partially adverse or contrary
speaking judgments. While so
opining we do not intend to whittle
down the principle that appeals are
not expected to be filed against
every inconvenient or disagreeable
or unpropitious or unfavourable
finding or observation contained in
a judgment, but that this can be
done by way of cross-objections if
the occasion arises. The decree not
assailed thereupon metamorphoses
into the character of a "former
suit". If this is not to be so viewed,
it would be possible to set at naught
a decree passed in Suit A by only
challenging the decree in Suit B.
Law considers it an anathema to
allow a party to achieve a result
indirectly when it has deliberately
or negligently failed to directly
initiate proceedings towards this
purpose. Laws of procedure have
picturesquely been referred to as
handmaidens to justice, but this
does not mean that they can be
wantonly ignored because, if so
done, a miscarriage of justice
inevitably and inexorably ensues.
Statutory law and processal law are
two sides of the judicial drachma,
each being the obverse of the other.
In the case in hand, had the Tenant
diligently filed an appeal against
the decree at least in respect of O.S.
5/78, the legal conundrum that has
manifested itself and exhausted so
much judicial time, would not have
arisen at all."

13. It is further sought to be argued
that in case of non-filing of separate
appeals, threat of resjudicata may also
come into picture and that would create
multiple complications.
8 All. Ramnath Singh Vs. Parshuram Singh & Ors.
937
14. Having heard learned counsel
for the parties, first of all the Court deals
with the submissions advanced by the
learned counsel for the appellant as regards
applicability of amended provisions of
Order 41 Rule 1 CPC which were
incorporated by the Amendment Act 1999
(46 of 1999). It may be noted that when a
suit is decided by the court of first instance
at district level, unless the judgment is
passed by the District Judge or Additional
District Judge, first appeal against the
decree drawn would lie before the District
Judge under Section 96 of the Code of
Civil
Procedure.
In
that
event,
memorandum of appeal shall be signed by
the appellant or his pleader and shall be
accompanied by a copy of the "judgment".
Prior to amendment made by Act No.46 of
1999, requirement was to attach copy of the
decree appealed from unless the appellate
court
could
dispense
with
the
said
requirement. The requirement of filing
judgment was already there which has been
taken away by the amended provision.

15. As far as second appeals are
concerned, by virtue of Order XLII Rule 1
CPC, provisions of Order XLI CPC shall,
in so far as may be, applicable to the
second appeals, i.e. appeals from appellate
decree. For a ready reference, Order XLII
Rule 1 CPC is reproduced as under:-

"1. Procedure.- The rules
of Order XLI shall apply, so far as
may be, to appeals from appellate
decrees."

16. Since a second appeal is filed
against the appellate decree drawn by the
first appellate court, even if applicability of
Rule 1 of Order XLI is examined in the
light of Rule 1 of Order XLII, as far as
requirement of attaching or non-attaching
decree appealed against, it would be
worthwhile to mention that the procedure
to file an appeal, either against the original
decree or against the appellate decree,
would be governed by the Allahabad High
Court Rules, 1952, which have been
framed in exercise of constitutional powers
under Article 225 of the Constitution of
India. Chapter IX contained in Part-II of
the Rules speaks of "Civil Jurisdiction" and
Rule 8 of Chapter IX needs a reference
here in order to appreciate as to the
requirement of documents to accompany
memorandum of appeal. Rule 8 of Chapter
IX reads as under:-

"8.
Documents
to
accompany
memorandum
of
appeal or revision application.-
Every memorandum of appeal or
application for revision shall be
accompanied by-
(a) a copy of the decree or
formal order against which the
appeal or application is directed;
(b) a copy of the judgment
upon which such decree or formal
order is founded;
(c) a copy of the judgment
of the Court of first instance where
the appeal or application is directed
against
an
appellate
(or
a
revisional) decree or order;

17. It is, therefore, apparent that
though amended Rule 1 of Order XLI CPC
does not require attaching a copy of decree
appealed from, there is no corresponding
amendment made in High Court Rules,
1952 as far as requirement of annexing
documents to a memorandum of appeal is
concerned. Apparently, the decree or
formal order against which appeal is
directed, has to be mandatorily attached
and that is why whenever such compliance
938 INDIAN LAW REPORTS ALLAHABAD SERIES
is not made by any appellant, a defect is
reported by the Stamp Reporting Section to
that effect. However, it is clarified that as
per sub-rule (c) of Rule 8 of Chapter IX
when a second appeal is filed, copy of
decree of the court of first instance need
not be annexed and annexing copy of the
judgment of that court would suffice. The
submission of learned counsel based upon
Section 31 of the Amendment Act, 1999,
therefore, cannot be accepted.

18. In so far as Section 32 of the
Act, 1999, the provision has been misinterpreted by the learned counsel of the
appellant and it relates to any amendment
inserted in the principal Act, i.e. Code of
Civil Procedure, prior to amendment made
in 1999, by a State Legislature or High
Court before the commencement of the
amendment Act and those amendments
which are inconsistent with the provisions
of the principal Act, i.e. CPC before
amendment, shall stand repealed but,
certainly, subject to savings described
under sub-section (2) of Section 32. The
repeal clause contained under Section 32 of
the Act of 1999 cannot be stretched to the
extent of superseding or nullifying the High
Court
Rules,
1952
enacted
under
constitutional powers conferred by Article
225
of
the
Constitution
of
India.
Promulgation of High Court Rules, 1952 or
any provision contained therein cannot be
treated as "State Amendment" incorporated
in the Code of Civil Procedure as applicable
in the State of U.P. and argument of learned
counsel for the appellant on that line has no
substance. The judgment of Kerala High
Court in Khaleel (supra) is also of no help to
the appellant as there was no issue before the
Kerala High Court as to whether a separate
appeal would lie from every decree or
whether, as per the concerned High Court
Rules, the requirement of annexing decree
drawn by the appellate court would stand
dispensed with. The Kerala High Court was
dealing with State amendments made in CPC
and the judgment was given in that
background.

19. At this Stage, it would be apt to
refer definition of "decree" as contained in
Section 2(2) of CPC, which reads as under:-

"2(2) "decree" means the
formal expression of an adjudication
which, so far as regards the Court
expressing
it,
conclusively
determines the rights of the parties
with regard to all or any of the
matters in controversy in the suit and
may be either preliminary or final. It
shall be deemed to include the
rejection of a plaint and the
determination
of
any
question
within1*** section 144, but shall not
include -
(a) any adjudication from
which an appeal lies as an appeal
from an order, or
(b) any order of dismissal for
default.
Explanation.- A decree is
preliminary
when
further
proceedings have to be taken before
the suit can be completely disposed
of. It is final when such adjudication
completely disposes of the suit. It
may be partly preliminary and partly
final."

20. Here, reference of Order 8
Rule 6-A should also be made where filing
of counter-claim by a defendant is
contemplated. The provision reads as
under:-

"6-A(1) A defendant in a
suit may, in addition to his right of
8 All. Ramnath Singh Vs. Parshuram Singh & Ors.
939
pleading a set-off under rule 6, set
up, by way of counter-claim against
the claim of the plaintiff, any right
or claim in respect of a cause of
action accruing to the defendant
against the plaintiff either before or
after the filing of the suit but before
the defendant has delivered his
defence or before the time limited
for delivering his defence has
expired, whether such counterclaim is in the nature of a claim for
damages or not:
Provided that such counterclaim
shall
not
exceed
the
pecuniary limits of the jurisdiction
of the Court.
(2)
Such
counter-claim
shall have the same effect as a
cross-suit so as to enable the Court
to pronounce a final judgment in
the same suit, both on the original
claim and on the counter-claim.
(3) The plaintiff shall be at
liberty to file a written statement in
answer to the counter-claim of the
defendant within such period as
may be fixed by the Court.
(4) The counter-claim shall
be treated as a plaint and governed
by the rules applicable to plaints."

21. In view of sub-rule (2) of Rule
6-A of Order 8, counter-claim shall have
the same effect as a cross-suit so as to
enable the Court to pronounce a final
judgment in the same suit and as per subrule (4), counter-claim shall be treated as a
plaint and governed by the Rules applicable
to plaints.

22. In view of the above discussion
of legal position, it can safely be concluded
that if a single suit gives rise to different
first appeals, without there being any
counter-claim or another consolidated suit,
the decree drawn in the said single suit
would conclusively determine rights of the
parties and irrespective of two first appeals
arising from the single judgment/ decree,
necessity to file two separate second
appeals would not arise. However, situation
would be different if, either two suits are
decided by a common judgment or there is
a counter-claim in the single suit, in such
event, there would be two decrees drawn
by the court of first instance and if two first
appeals are filed arising from such two
decrees, certainly, there shall have to be
two second appeals.

23. Now, coming to the necessity
of filing a single or two appeals in the
instant case, it may be noted that since
decrees drawn in Civil Appeals No.26 of
2010 and 22 of 2010, either in toto or to
some extent, have been challenged, in view
of the decision of Narhari (supra),
Bhagwan Sahai (supra) and Jai Narain
Har Narain (supra), since there was a
single suit and one trial, one finding and
one decision, irrespective of the fact that
two decrees may or could have been drawn
up, there need not be two separate appeals.
The threat of resjudicata as sought to be
argued by the respondent's counsel in the
light of judgments in M/S Ramnath
(supra)
and
Sri
Gangai Vinayagar
(supra) has been dealt with by the Supreme
Court observing that such question arises
only when there are two suits but not when
there is a single suit.

24. In view of the above
discussion, this Court is of the considered
opinion that the amended provisions of
Rule 1 of Order XLI CPC do not directly or
indirectly
nullify
or
dispense
with
requirement of attaching certified copy of
the decree drawn by the first appellate court
940 INDIAN LAW REPORTS ALLAHABAD SERIES
as per Rule 8 of Chapter IX of the High
Court Rules, 1952. Since, in the instant
case, consolidated judgment has been
passed in two civil appeals arising from a
single suit, the objection endorsed by the
Reporting Section, as regards filing of two
separate appeals, stands overruled and
single second appeal, in the present case, is
held to be maintainable, without there
being necessity to file another second
appeal from the same decree/ judgment.

25. The Stamp Reporting Section
shall comply with the directions contained
in paragraphs no.17 and 22 of this order
while reporting other second appeals filed
henceforth.

26. Registrar (Compliance) is
directed to send a copy of this order to the
Reporting Section to ensure compliance of
the directions issued under this order.

27.

Put
up
as
fresh
on
31.08.2024.
----------
(2024) 8 ILRA 940
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2024

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE VIKAS BUDHWAR, J.

Appeal U/S 37 of Arbitration & Conciliation Act
1996 No. 356 of 2024

Sanjit Singh Salwan & Ors. ...Appellants
Versus
Sardar Inderjit Singh Salwan & Ors.
 ...Respondents

Counsel for the Appellants:
Manish Goyal, Sr. Advocate, Utkarsh Birla,
Aarushi Birla
Counsel for the Respondents:
Navin Sinha, Sr. Advocate, Naman Agarwal,
Nipun Singh, Vinayak Mithal

Civil
Law
-
The
Arbitration
and
Conciliation Act, 1996 - Section 9 - Law of
arbitration-
appeal
against
order
dismissing application for interim relief
filed - arbitrability of trust-related issues
under the Arbitration and Conciliation Act,
1996- whether disputes regarding the
management and membership of the Guru
Tegh Bahadur Charitable Trust, a public
trust,
could
be
resolved
through
arbitration-
such
disputes
are
nonarbitrable under Section 92 of the Code of
Civil Procedure, which governs public
charitable trusts- the arbitrator lacked
jurisdiction- Commercial Court's decision
to reject the application for interim relief
under Section 9 of the Arbitration Actappeal dismissed. (paras 31 to 33, 35, 38,
39, 41, 42, 43, 44, 47 and 49)
HELD:
Section 92 of CPC deals with the disputes of
public charities/Trust created for public purpose
or charitable or religious nature, wherein a
complete procedure has been laid down for
taking legal action. In order to attract the
provisions of Section 92 of Code of Civil
Procedure, three conditions have to be satisfied
namely (i) The trust if created for charitable or
religious nature; (ii) there was a breach of trust,
or a direction of Court is necessary in the
administration of said Trust; (iii)The relief
claimed is one or the other of the reliefs
enumerated in Sub-Section (1) of Section 92 of
CPC. Further Sub-Section (2) of Section 92
provides with a non-obstante clause that no suit
claiming any of the reliefs specified in SubSection (1) of Section 92 shall be initiated in
respect of any of the Trust as referred thereto
except in conformity with the provisions of SubSection (1) of Section 92. (para 31)

The bone of contention between the rival
parties is whether the dispute is arbitrable, so as
to invest the arbitrator the jurisdiction to decide
the disputes of a Trust in the wake of the
provisions of Section 92 of CPC. To test the said
submission, we are required to have a quick
survey of the disputes, which was referred to for